Saturday, June 24, 2017

  *1259 I.  Detangling the Politics of Racially Conscious Dress Codes--a Sociological Analysis of Racial Bias, Trait Discrimination, and Cultural Assimilation

Anna-Lisa F. Macon  Hair's the Thing: Trait Discrimination and Forced Performance of Race Through Racially Conscious Public School Hairstyle Prohibitions, 17  University of Pennsylvania Journal of Constitutional Law 1255 (April, 2015) (194 Footnotes)

  Nowhere is the cultural construction of race in America more apparent than in the case of Alexina Morrison, "kidnapped" slave and self-professed White woman.  In 1857, Alexina ran away from her master and convinced the local parish jailer (William Dennison, a White man) that she was a White woman who had been kidnapped into slavery.  Dennison took Alexina home and introduced her to White society, taking her to "balls and other amusements with his family."  With the help of Dennison and his community, she sued her master for her freedom.  Though Alexina could certainly pass for White with her "blue eyes and flaxen hair," this was not the main argument her new friends and neighbors made on her behalf at trial.

Alexina's witnesses assured the jury that she had fit in perfectly at their balls, that she had slept in their beds with their daughters, and that they surely would have known if she had a drop of African blood. . . . Several doctors testified on her behalf that the shape of her hair follicles and the arches of her feet proved her Whiteness.

Though Alexina's physical appearance was a necessary condition to establish her Whiteness, she also had to prove her conduct was White to win at trial.  Skin color, though highly visible, was only one aspect of race.  Consideration of multiple traits--physical, social, and cultural-- went into a determination of whether someone was Black or White.

The slave master's defense is just as telling. In addition to providing documentation to prove Alexina was a slave of the Morrison family, he used scientific language to show that race "could not [be] discovered through appearances, [but was] something that required expertise to discern."  Alexina's alleged slave master attacked her "White character" *1260 to prove her "negro blood."  Indeed, the slave master "call[ed] her sexual virtue into doubt . . . and question[ed] her witnesses about her behavior at public balls."  Despite these tactics, Alexina ultimately prevailed.  Though she "was undoubtedly a slave, and almost certainly had some African ancestry, she repeatedly won over White jurors . . . [by] perform[ing] the role of a White woman, and convince[ing] others of her moral worthiness."

Over 150 years after Alexina's fight for freedom, the concept of race in America remains relatively unchanged. People still believe race is about more than skin color. Race lies in performance of certain racially-coded actions and attributes. A study on racial stereotypes in the early 1930s found that "Whites were viewed as smart, industrious, and ambitious, whereas Blacks were viewed as ignorant, lazy, and happy-go-lucky."  Though such blatant racism against Blacks has largely faded, modern racism remains and is characterized by more subtle and insidious racial biases.  Studies from the late 1980s and 1990s suggest that "[n]on-Blacks exhibit subtle racism when it is safe and socially acceptable to do so, or when the racism is easily rationalized."  Blacks and non-Blacks alike are indoctrinated with negative stereotypes about Black people and Black culture, simply by virtue of growing up in the United States.  Additionally, "Implicit Association Tests (IATs) provide compelling evidence that many Whites [still] hold negative stereotypes that are frequently associated with Blacks."

*1261 Though race in America is a cultural creation rather than a biological reality, "[i]t is a brutal fact of life for millions of citizens, and an inescapable problem for the rest . . . ."  This ingrained racial bias leads to the type of school policies that prohibited Vanessa VanDyke from proudly wearing her afro. These policies are examples of trait discrimination that encourage physical and cultural assimilation to the dominant ideal. The policies are, at their core, an effort to eradicate Black physical and cultural traits and replace them with White ones.

Suppose you are an employer preparing to interview a fictional young woman named Shaquanda Jackson.  You only have a r‚sum‚, but you try to anticipate what she will be like. What race is she? How does she speak? What type of clothes does she wear? Is she skinny or fat? Morally upright or wild and promiscuous? What did you presume about her spelling and grammatical abilities after simply glancing at her name? Most Americans have answers to those questions, based on experience, prejudice, or other seemingly justifiable reasons.  More likely than not, the answers to most or all of those questions have negative connotations.  Despite being a name on a page, completely divorced from physical attributes and general conduct, Shaquanda Jackson is racialized. Shaquanda Jackson is Black, and not in a good way. But then, is "being Black" in an employment or educational setting ever a good thing?

A trait is "a quality that makes one person or thing different from another."  When Americans see the name Shaquanda Jackson, and *1262 mentally distinguish her from others by designating her as a "Black person," her very name becomes a trait associated with Blackness. Acknowledging this relationship is fundamental in understanding trait discrimination. Americans hear a name like Shaquanda Jackson or see a hairstyle like dreadlocks, and mentally code both name and hairstyle as racially Black. Trait discrimination takes this mental recognition a step further, by actively prohibiting speech, names, clothing, hairstyles, etc. that Americans mentally associate with a specific race. Though Black persons are not born with dreadlocks or pre-destined to be named Shaquanda, these traits become avatars of Blackness. Because race is such a real and tangible thing in American culture,  these avatars cannot be separated from their racial significance.

Identification and prohibition of socially disfavored traits is an attempt to culturally assimilate persons who have these unpalatable characteristics. Racial biases cause Americans to associate Black persons with negative attributes; as a result, characteristics associated with Black persons are imbued with these negative attributes. Historically, this type of bias (coupled with the obvious economic and social incentives) resulted in Black enslavement  and Black persons' explicit relegation to the lower classes via Jim Crow laws.

But when the historical vehicles for explicitly degrading Black persons were prohibited by law, employers and society as a whole changed tactics.  Americans stopped overtly stigmatizing race and started attacking traits associated with race.  This social convention keeps Blacks who embody stereotypically Black traits in the socio-political underclass,  while allowing Blacks who perform "Whiteness" *1263 (i.e., adopt enough "White" traits to be palatable and unobtrusive to culturally White society) to flourish.

Though performance of Whiteness is an accepted (if greatly resented) part of succeeding in the United States, for Black persons, forced performance (also known as socially mandated cultural assimilation) is of even greater concern. By limiting Black children to hairstyles that change, subdue, or materially alter their natural hair, state-funded primary and secondary schools engage in race discrimination, using Black traits as a proxy for the disfavored racial group. It is deeply and inherently wrong to inculcate Black persons (or any non-White persons) with the understanding that their ethnicity and natural bodies are unpalatable, unprofessional, and unworthy. Using state-sanctioned institutions (i.e., public schools and charter schools) to enforce this sense of physical and cultural inferiority upon children, whose sense of self-worth and identity is still forming, is an even greater injustice. Such injustice warrants protection through adequate enforcement of Fourteenth Amendment guarantees.

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